TMI Blog1966 (1) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the appellants as well as other persons in the locality. In the said objections it is inter alia pointed out that the Ram Krishna Mission had more land by acquisition and/or private purchase at its disposal in the said mouza Ukhila-Paikpara as well as in certain contiguous villages than what would be required for carrying out the project for which the land was required. But these objections were overruled and on 23rd of October 1962 a notification was published in the Calcutta Gazette (Extra-ordinary) containing a memorandum of agreement dated 22nd October 1962 which was entered into between the Ram Krishna Mission and the Governor of West Bengal purporting to be made under Section 42 of the Land Acquisition Act. In the same Gazette a declaration under Section 6 of the Land Acquisition Act was published. It appears that as the Ram Krishna Mission is a registered society and as such a Company within the meaning of the Land Acquisition Act, the said memorandum of agreement dated 22nd October 1962 was executed in compliance with the provisions of part 7 of the Land Acquisition Act before declaration under Section 6 of the Act could be published. 5. On 26th March 1963 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The contention on behalf of the appellants is that the appellants were not given any opportunity of being heard as required under Section 5-A of the Land Acquisition Act with regard to their objections and there was no report or no valid report under Section 5-A of the Act inasmuch as the Additional Land Acquisition Collector who purported to hold the enquiry under Section 5-A had no authority to do so under the provision of Section 5-A(2) of the Land Acquisition Act, as only a Collector as contemplated in the Act can hear the objections and submit a report containing his recommendations on the objections to the appropriate Government for the decision of such Government. The further contention based on Section 5-A of the Land Acquisition Act is that in any event no opportunity of a hearing as contemplated in Section 5-A of the Act was given to the appellants. 10. It appears however, that no such point as to want of authority on the part of the Additional Land Acquisition Collector who held the enquiry under Section 5-A of the Land Acquisition Act was specifically raised in the petition under Article 226 of the Constitution. All that is alleged in paragraph 14 of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 5-A of the Land Acquisition Act shows that the Additional Land Acquisition Collector Sudhirendranath Ganguly recommended that the proceeding for acquisition of the lands in question should be dropped as there was no necessity for acquiring these lands for the alleged purpose for which such lands were sought to be acquired. The finding of the Additional Land Acquisition Officer in his report dated 19th November 1961, is that, if the acquisition was proceeded with then some of the objectors would be rendered homeless and with regard to others the avocations of their lives would be disturbed. Moreover Ram Krishna Mission had other lands for construction of Students' Home at their disposal and therefore, it was not necessary to acquire the lands which are the subject-matter of the declaration, for such purpose. It is argued on behalf of the appellants that these findings were arrived at and the recommendation for dropping the proceeding was made after hearing the lawyer of the objectors one Shri S. Mukherjee, an Advocate. But it appears that after the report together with the records, was sent to the Government, one Sri S.N. Das Gupta who described himself as Special Land A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egular official channels. These records together with the report had to pass through the hands of the Deputy Commissioner who was the immediate superior of the Sub-Divisional Magistrate. This Deputy Commissioner had made certain notes or comments on the report. The Deputy Commissioner had also made some local enquiries by himself and through some other officer and his recommendation was contrary to the recommendation of the Sub-divisional Magistrate which contained proposal for dropping the acquisition proceeding. It was argued in that case that as no hearing was given to the objectors in respect of the enquiries that had been made by the Deputy Commissioner, the provisions of Section 5-A of the Act had not been complied with as the objectors had not been given a further hearing by the Deputy Commissioner. It was held that the objectors were not entitled to any further hearing before the Deputy Commissioner and therefore, there was no violation of the provisions of Section 5-A of the Land Acquisition Act. The Sub-divisional Magistrate had given the objectors opportunity of being heard and this was sufficient compliance with the provisions of Section 5-A of the Act. 15. Reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een given effect to and that is why the extent of the acquisition was reduced to the extent mentioned in the declaration made under Section 6 It appears to us that merely because the Special Land Acquisition Officer Mr. Das Gupta had made certain comments and had collected certain further materials in the absence of the objectors, that does not violate the provisions of Section 5-A of the Act nor does it vitiate the declaration made under Section 6 of the Act. 17. The next point which has been urged on behalf of the appellants is that Section 5-A of the Land Acquisition Act and Section 40 of the Land Acquisition Act are mutually exclusive and consequently if any enquiry under Section 5-A is held for hearing the objections, there is no scope for an enquiry under Section 40 of the Act and inasmuch as in the present cast: there was hearing of objections under Section 5-A and there was also an enquiry under Section 40 and on the basis of both these enquiries and reports under Section 5-A and Section 40 the declaration under Section 6 had been made, the said declaration must be held to be bad it appears to us that there is no force in this contention The provisions of Section 5-A app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the terms of Section 41, Clause (5) have not been complied with in this case inasmuch as the agreement which is required to be entered into under Section 41 of the Act and which was in fact entered into in the present case, does not contain the terms on which the public shall be entitled to use the work as is enjoined by Clause (5) of Section 41. It is submitted that the only clause which has inference to the question of user of the land by the public is Clause (8) of the agreement which is as follows: 8. The public shall be entitled to use the land subject to the rules and regulations of the Ram Krishna Mission But such a covenant it is argued is not a sufficient compliance with the provisions of Clause (5) of Section 41, particularly as no rules and regulations relating to user of land by the public have been framed by the Ram Krishna Mission. It is argued that the Supreme Court has held in the case of Ram Kumar Agarwalla v. State of West Bengal reported in AIR 1955 SC 995 that such a covenant as Clause (8) is not a covenant ensuring a right to the public to use the work as of right and so the acquisition of land purported to he made in that case under the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of Students Home itself is a work which is directly useful to the public, it must be held that the requirements of Section 41(5) have been satisfied by the agreement which has been entered into under Section 41 of the Act in the present case. The fact that no specific rules and regulations have been framed by the Ram Krishna Mission with regard to the user of the land in question by the public does not make the agreement invalid. This very point was considered by this Court in the case of Chirkut Tewari v State of West Bengal reported in: AIR1967Cal89 my learned brother B. C. Mitra, J. who delivered the judgment in this case made the following observations: It was however argued on behalf of the appellant that no rules and regulations had been framed by the Parishad as provided in Clause (8) of the agreement and therefore, it should be held to be bad. In our opinion there is no merit in this contention. The statute does not require any such rules and regulations. ......... If no rules and regulations have been framed by the Parishad, the public will have unrestricted and unlimited right to use the works in the buildings of the Parishad subject to the terms of the agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mission is engaged, there can be no doubt about the applicability of the provisions of Clause (aa) of Sub-section (1) of Section 40 to the proposed acquisition The learned Advocate for the respondents has further submitted that the agreement in question satisfied the requirements of Clause (4-A) of Section 41 which is to be read with Clause (aa) of Sub-section (1) of Section 10. In these circumstances, it is argued that the proposed acquisition can also be justified as having been made under Clause (aa) of Section 40(1) of the Act. It is also submitted by the learned Advocate that the fact that there is no indication in the agreement that the Government is purporting to acquire the land in terms of the provisions of Clause (aa) of Section 40(1) of the Act is immaterial inasmuch as the Government does not generally as pointed out by the Supreme Court in AIR 1905 SC 046 (supra) state in so many words in the agreement whether the proceeding is under Clause (a) or Clause (aa) or Clause (b) of Section 40(1) of the Act. It appears to us that this contention of the learned Advocate for the respondent No. 6 has considerable force, but in view of our finding that the proposed acquisition i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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